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November 14, 2009

How quickly will Ohio be able to get back to executions after adopting one-drug lethal injection protocol?

As noted in this prior post, roughly two months after Ohio had to stop a botched execution, the state has announced the development of a whole new lethal injection protocol. This New York Times article provides the basic details, and also sets up the big legal question which now follows:

Breaking ranks with the 35 other states that use lethal injections to execute prisoners, Ohio on Friday became the first state to say it would switch to a single drug, rather than a three-drug cocktail, in its death penalty procedure.

Critics have long argued that using a single drug, the preferred method in animal euthanasia, is more humane than the three-drug cocktail, which involves a short-acting barbiturate to render the inmate unconscious, followed by a paralytic and then a chemical to stop the heart....

Ty Alper, associate director of the Death Penalty Clinic at the University of California, Berkeley, called the change “a significant step forward.”

“The hope is that other states will realize that there is no need to paralyze inmates before executing them,” he said, “and that, in fact, doing so risks a horribly torturous execution.”

Richard C. Dieter, executive director of the Death Penalty Information Center in Washington, which opposes the death penalty, said that while he saw the policy change as an important step forward, he did not believe that Mr. Broom would be executed any time soon.

He said he anticipated that the new method would be delayed by extensive court challenges, with medical experts lining up to testify on both sides of whether the single-drug method is humane. “The simple fact is that no one knows whether this method will work on humans,” he said, “and what unforeseen side effects there could be to using the drug in this way.”

It is inevitable that death row defendants will medically question and legally challenge Ohio's new one-drug lethal injection protocol. But I do not think it is inevitable that these legal challenges should take a very long time to resolve. As Jeff Gamso notes in this post titled "The Execution Express," Ohio officials have indicated that they are ready, willing and eager to start using the new execution protocol ASAP, and Ohio currently has an execution scheduled for each of the next seven months.

I previously predicted that it was unlikely Ohio would get back in the execution business until 2010, but I had not expected the state to roll out a new one-drug lethal ijection protocol (with a back-up plan) so quickly. I still would be surprised if Ohio succeeds in getting its death chamber revved up again in a matter of weeks; but the federal courts who've long struggled with these issues may perhaps now will be eager to move this matter quickly now that Ohio has adopted a new execution protocol that seems to respond to the chief complaints about the old lethal injection protocol.

California submits new plan for complying with federal prison-population order

As detailed in this Los Angeles Times article, which is headlined "Governor submits plan to cut prison population: But he also disavows the proposed solutions as being illegal," California's "Gov Arnold Schwarzenegger on Thursday gave federal judges a road map to reducing state prison overcrowding by waiving some state laws to allow sentences to be reduced and new private prisons to be built." Here are more of the particulars:

An initial plan that Schwarzenegger submitted in September was rejected three weeks ago by the three judges, who threatened him with contempt of court for failing to meet their demand for a proposal to reduce the inmate population by 40,000 prisoners over two years.

With his new proposal, the governor appeared to be trying to avoid open defiance of the judges without giving the impression that he is contradicting his opposition to their efforts in an appeal now pending before the U.S. Supreme Court. The state is arguing that it is improper for the federal courts to intrude into the state's affairs. "We're saying the court . . . doesn't have the authority to do any of this, but the court obviously disagrees with us," Matthew Cate, the governor's prisons chief, told reporters.

The governor said the new plan would open up a total of 42,000 prison beds by December 2011, some through new construction and some by sentencing changes to limit the number of inmates the state incarcerates. He heeded the judges' Oct. 21 order to identify state laws that they would need to suspend to meet their goal. But Schwarzenegger also told the judges he did not believe it would be legal for them to waive those laws....

Some of the governor's new plan echoes what he submitted previously: reduction in the inmate population through sentencing changes, which would need approval by lawmakers, and construction for which the state already has authority. But it also includes measures, accounting for more than 25,000 inmates, that the Legislature rejected during the budget fight last summer: home detention with satellite tracking devices for some inmates; permitting some felony offenders to serve time in county jails instead of state prisons; and reducing sentences for property crimes.

November 13, 2009

Documenting the health-care costs of long sentences

I often enjoy noting the fact that prisoners do get one benefit that many non-prisoners might envy: free health care. But, as this new CNN feature highlights, the health care received free by prisoners is not free to taxpayers, and the costs of health-care for prisoners continues to rise as more and more prisoners are serving longer and longer sentences. the CNN piece is headlined "Prison health-care costs rise as inmates grow older and sicker," and here are excerpts:

As health care sparks debate across the nation, the prison community faces its own battle against rising medical costs. The elderly constitute the fastest-growing sector of the inmate population, experts say. It is a group that needs more frequent and costlier treatment, which states are required to provide under the cruel and unusual punishment clause of the Eighth Amendment to the U.S. Constitution.

An analysis of Bureau of Justice Statistics data found that the male prison population over age 55 ballooned by 82 percent in eight years, from 48,800 inmates in 1999 to 89,900 in 2007. The definition of "elderly" varies by state. The National Corrections Institute, a prison research organization, calls inmates over 55 elderly, and some states place inmates over 50 in that category. An inmate's body ages faster than the body of someone not in prison.

Georgia, one of the 10 largest prison systems in the country, spends about $8,500 on medical costs for inmates over 65, compared with about an average of $950 for those who are younger, corrections officials say. Across the county, inmate medical care costs about $3 billion a year....

In the last few decades, a growing number of prisons have improved their quality of medical care, says Edward Harrison, president of the National Commission on Correctional Health Care, an accreditation organization based in Chicago, Illinois.

Elizabeth Alexander, director of the ACLU's National Prison Project, says investigations revealed that inmates were often denied access to certified doctors in the 1970s. In some instances, inmates were providing medical and dental care to one another. There continues to be lawsuits filed against prisons and jails for providing poor medical care, she says, but overall, the care has vastly improved.

Some states, such as Virginia and Pennsylvania, have built geriatric prison facilities that resemble mini-hospitals, equipped with medical devices and oxygen tanks. Prisons are being licensed as acute-care settings with a crew of registered nurses, correctional health experts say.

Placing elderly prisoners into separate facilities or wings can help the state consolidate costs. Nearly 75 hospice programs exist in prisons -- up from less than 10 a decade ago, says Carol McAdoo of the National Hospice and Palliative Care Organization. "I would argue that the health care that is rendered behind bars is better than what is received in the general population," says CEO Rich Hallworth of Prison Health Services, a private medical corrections company in Tennessee that serves 172 jails and prisons around the country.

To ease budget woes in California, one bill up for debate would allow nonviolent elderly prisoners to be released into hospice care or monitored with ankle bracelets. In the past few years, Georgia officials say, the state has released more frail and dying inmates on medical reprieve than ever before. Other states, including New York and Virginia, have also allowed early release of ailing elderly inmates.

But critics, including victims' advocacy groups, have scrutinized this policy. Will Marling, executive director of the National Organization for Victims Assistance in Virginia, said most victims believe offenders will strike again after they are released. "If a person is sentenced to life, we know they are naturally going to get old," Marling said. "A life sentence should mean life."

"America's Prison Spree Has Brutal Impact"

The title of this post is the headline of this new commentary by Stuart Taylor in The National Journal. Here is how it begins:

The November 9 Supreme Court arguments on whether it is cruel and unusual to impose life in prison without parole on violent juveniles who have not killed anybody understandably got prominent media coverage.

But a far more important imprisonment story gets less attention because it's a running sore that rarely generates dramatic "news." That is our criminal-justice system's incarceration of a staggering 2.3 million people, about half of them for nonviolent crimes, including most of the 500,000 locked up for drug offenses.

Forty percent of these prisoners are black, 20 percent are Hispanic, and most are poor and uneducated. This has had a devastating impact on poor black families and neighborhoods, where it has become the norm for young men -- many of them fathers -- to spend time in prison and emerge bitter, unemployable, and unmarriageable.

Ohio adopting a new one-drug lethal injection protocol

Big news for lethal injection fans from my home state: as detailed in this local report, "Ohio will switch to a single drug instead of a three-drug cocktail in its new execution procedure, according to documents filed in federal court this morning." Here are more details:

Executions will use a single drug, thiopental sodium, "in an amount sufficient to cause death," Attorney General Richard Cordray's office said in filing in U.S. District Court in Columbus. The drug is an anesthetic. The new procedure will be in place by Nov 30.

The new procedure is similar to one used in euthanizing pets: a massive dose of an anesthetic. The drug is also sometimes used in medically-induced comas. Ohio will be the first state in the U.S. to use the one-drug procedure.

The state filing also listed a new backup procedure, if the first one doesn't work or can't be used. The backup method involves an injection with a needle into a large muscle such as the arm or upper thigh. It was described as "much like a flu shot." One of the drugs to be used is Dilaud, a commonly used painkiller.

"I have full confidence that this protocol will allow my staff the ability to fulfill our legally mandated obligation in carrying out the execution process for the state of Ohio," said Terry Collins, director of the Ohio Department of Rehabilitation and Correction....

Ohio would become the first state to make major changes in a three-drug execution process that was essentially copied by 35 states from Oklahoma, where it was developed by an anesthesiologist in 1977.

Seems like Friday afternoon is a bad time to do away with cocktails, but I guess Ohio thinks a shot straight up will now be adequate to do the trick. (Sorry for the gallows humor, but it is hard to resist on a Friday afternoon.) In all seriousness, this is big news in the lethal injection protocol debates, and it will be interesting to see how it is received among those who have been most vocal in their objections to the old cocktail approach.

UPDATE: I was able to get a copy of the new Ohio lethal injection plan submitted in federal court today. That plan appears as an appendix to a motion in Ohio's on-going lethal injection litigation, and all of this can be downloaded here: Download Ohio new lethal injection plan

"There have been fewer executions in California than deaths by lightning strike "

The title of this post is the first sentence of this new note in the California Law Review, which is titled "Capital Crime: How California’s Administration of the Death Penalty Violates the Eighth Amendment." Here is more of the piece's abstract:

But what does the death penalty have to do with lightning? The comparison is drawn from the analysis in the landmark capital punishment case, Furman v. Georgia, which held capital punishment at the time to be unconstitutional. That analysis, now mostly relegated to sound bite status, suggests that California's capital punishment system is unconstitutional. In Furman, Justice Stewart compared being sentenced to death with getting struck by lightning, in the sense that sentencing was both arbitrary and capricious. The Furman court noted that this was not acceptable because it meant that capital punishment could not serve the legitimizing penal purposes of deterrence and retribution.

Now once inmates have been sentenced to death in California, executions are so infrequent that comparison with lightning is generous. Because the execution rate in California is so low, sentencing does not correspond to the actual imposition of the death penalty. Only 13 inmates have been executed since 1978. There are currently 677 on death row. This paper aims to show that as a result of a low execution rate and inmate death row stays averaging around 17 years and growing, capital punishment in California is no longer more retributive or deterrent than the punishment of life without parole. As such, it is excessive and violates the Eighth Amendment.

Obama Administration making key decisions on how to prosecute key terror suspects

As detailed in this new New York Times piece, Attorney General Eric Holder is expected this morning to announce formally a set of important decisions about how federal officials plan to prosecute key terror suspects. Here are the specifics:

Khalid Shaikh Mohammed, the self-described mastermind of the terrorist attacks of Sept. 11, 2001, and four other men accused in the plot will be prosecuted in federal court in New York City, a federal law enforcement official said early on Friday.

But the administration will prosecute another set of high-profile detainees — Abd al-Rahim al-Nashiri, who is accused of planning the 2000 bombing of the U.S.S. Cole in Yemen, and four other detainees — at the military prison at Guantanamo Bay, Cuba before a military commission, the official said....

No detainee is being moved right away. Under a law Congress enacted earlier this year, lawmakers must be given 45 days notice before the executive branch moves any Guantanamo Bay detainee onto United States soil.

The decision marks a milestone in the administration’s efforts to close the Guantanamo prison, something that President Obama announced shortly after taking office he would do within a year, but which has proven difficult to achieve because of uncertainty about what to do with the detainees housed there.

I hope and suspect that the death penalty is a punishment in the mix for all of these folks. Indeed, assuming these suspects are guilty of planning and helping to execute the 9/11 terror attacks, these individuals present a challenge for those who are avowed death penalty abolitionists to explain why capital punishment should not at least be an option for perpetrators of these kinds of horrific mass-killing crimes.

Former congressman William Jefferson scheduled to learn sentencing fate today

As detailed in this local article, which is headlined "William Jefferson can expect long prison sentence -- but not 27 years, experts say," many are forecasting that a record-setting sentence for a former member of Congress will be handed down today. Here are the particulars:

William Jefferson is facing a lengthy prison sentence from U.S. District Judge T.S. Ellis III on Friday, legal experts say, but probably not the 27 to 33 years recommended by prosecutors.

Jefferson, 62, the New Orleans Democrat who served nine terms in the House of Representatives, is due for sentencing Friday afternoon in the same Alexandria, Va., federal courthouse where he was convicted in August 11 public corruption counts. The jury acquitted him on five other charges after an eight-week trial.

Those willing to predict a sentence suggest that Jefferson faces something in the range of 10 to 20 years, still the harshest punishment handed down in a congressional corruption case. "The federal government is going to want to make an example of him," said Kevin Tamez, managing partner of a New Jersey firm that specializes in federal sentencing issues. "But I would be shocked if he got anything close to 27 or 33 years."...

Predicting how long a sentence the defendant will get is difficult, especially now that judges are not required to strictly follow federal sentencing guidelines. Ellis appears to have established a floor by imposing stiff prison terms for two men who pleaded guilty in the case.

Brett Pfeffer, a former Jefferson aide, got eight years for conspiracy to commit bribery. Vernon Jackson, CEO of a Kentucky technology firm who testified that he sent payments to a firm headed by Jefferson's wife in return for the congressman's help landing contracts in Western Africa, was given seven years and three months.

"This is a hard one because the sentencing guidelines are almost off the charts, in effect a life sentence for Jefferson who is 62," said Harry Rosenberg, a former chief federal prosecutor in New Orleans now in private practice. Rosenberg said he doesn't expect the judge to along with what the Justice Department wants but believes the sentence will be "significantly longer" than the terms given Jackson and Pfeffer.

But Dane Ciolino, a Loyola University law professor, said that while the Jackson and Pfeffer sentences "are partly the result of lesser culpability, the acceptance of responsibility and cooperation with the government, Mr. Jefferson's sentence should not be grossly disproportionate to theirs." "Otherwise, his sentence will appear to be a penalty for the exercise of his constitutional right to a fair trial," Ciolino said.

Jefferson should benefit by some calculations used in sentencing such as this being his first criminal offense and the fact that other members of Congress convicted of corruption have received sentences no higher than eight years, four months. That sentence was given to former Rep. Duke Cunningham, R-Calif, after he pleaded guilty to taking bribes to get appropriations in House spending bills for defense contractors. Jefferson's lawyers argue that their client never introduced a bill or sought an earmark, or appropriation in return for the payments alleged by the government.

In a memorandum submitted Thursday, lead prosecutor Mark Lytle and his co-prosecutors disagreed. "The jury found beyond a reasonable doubt that the defendant converted his congressional office into criminal racketeering enterprise in which he repeatedly sold his office to business people willing to pay cash, stock and equity interests through which the defendant and his family stood to gain more than $500 million," the prosecutors wrote. "Even the most egregious of the cases cited by the defendant do not involve the potential for payoffs of hundreds of millions of dollars."

UPDATE:This Reuters piece details the sentencing outcome: "William Jefferson, who hid $90,000 in cash in his freezer, was sentenced on Friday to 13 years in prison for bribery, racketeering and money laundering."

November 12, 2009

Latest OSJCL issue available on-line provide lots to read

The Fall 2009 issue of the the Ohio State Journal of Criminal Law has recently gone to press, and the entire new OSJCL issue is available on-line here. Among a number of terrific pieces in this new issue, there are two terrific symposia, one on "What Criminal Law and Procedure Can Learn From Criminology" and one on "Criminal Law, Casebooks, and Legal Education."

As detailed in this new New York Times piece, "Military prosecutors have charged Maj. Nadil Malik Hasan with 13 counts of premeditated murder in last week’s shooting rampage at Fort Hood, Tex., a spokesman for the Army criminal investigation division said Thursday." Here are more of the legal details, with a death penalty spin:

The 13 charges against Major Hasan are “initial charges,” said the Army spokesman, Chris Grey, “and additional charges may be preferred in the future, subject to the ongoing criminal investigation.”...

The Uniform Code of Military Justice provides the death penalty as a possible punishment for 15 offenses, many of which must occur during a time of war, the center says. All nine men on the military’s death row were convicted of premeditated murder or felony murder.

There has not been a military execution since 1961, although nine men are on the military’s death row at Fort Leavenworth, Kan., according to the Death Penalty Information Center. The president has the power to commute a military death sentence, and no military prisoner can be executed without the president’s approval.

President George W. Bush approved the execution of one of the nine, Pvt. Ronald A. Gray, on July 28, 2008. Private Gray was convicted by court-martial of two murders, an attempted murder and a series of rapes around Fort Bragg, N.C., more than two decades ago. Lethal injection is now the method of execution, the Death Penalty Information Center says.

The last military prisoner to be executed was Pvt. John A. Bennett, who grew up in southern Virginia and was hanged at Fort Leavenworth on April 13, 1961, three days past his 26th birthday for the rape and attempted murder of an 11-year-old Austrian girl in December 1954.

In 1957, President Dwight D. Eisenhower approved Private Bennett’s execution, and President John F. Kennedy declined to grant clemency, although he did commute one military death sentence in 1962.

Private Bennett’s execution got relatively little attention at the time because the previous day the Soviet Union had launched the first person, Yuri Gagarin, into space, and several days later the Bay of Pigs invasion took place in Cuba.

The title of this post is the question in the headline of this provocative commentary, which seeks to dig deeper into how the Carrie Prejean "sex tape" surfaced and whether crimes were committed in the tape's distribution. Here is a snippet from the commentary:

The video came to light after the Miss California pageant’s lawyers showed some of the tape in court, causing Prejean to drop her lawsuit against the contest in “about fifteen seconds.” But the court attendees — including Prejean’s mother — were not the first to see the film since the break-up. The celebrity gossip website TMZ has announced it “obtained the video months ago.” Which raises the question: how and from whom was the film”obtained”? In this case, it seems prudent to ask the Latin question, Cui bono — who benefits? The beauty contest’s lawyers, who took Prejean’s crown under questionable circumstances, were locked in a bitter legal battle with a sympathetic defendant. Did pageant officials leak child pornography to the media in an effort to destroy a legal adversary?

Prejean sued the pageant in late August. If the lawyers sent a copy of the allegedly illegal tape to TMZ in September, that would qualify as “months ago.”
E! News added another wrinkle last week, noting that unnamed “peddlers” offered the video as an “exclusive” months ago for $10,000 — and even pornographic websites would not touch it. Nik Richie of TheDirty.com told E, “our lawyers wouldn’t let us put it on the site.”

If any cash changed hands in any of the various transactions leading from the boyfriend to the barristers, that would constitute trafficking in child pornography....

The distribution chain begins with the boyfriend — but if he is like most teenage boys, he probably passed off duplicated copies to his 20 closest friends within an hour, a pointed lesson for teens about the perils of sexting. Any of its recipient may have approached the Miss California USA pageant or these websites — or the pageant may have subsequently contacted the websites....

If Carrie was indeed 17 at the time, all parties should be investigated and, if grounds exist, prosecuted to the fullest extent of the law.

Let me repeat again what I have said in prior post about the Prejean sex tape:
I am not seriously advocating that this matter become fodder for
federal prosecutions. Rather, I am eager to use this
high-profile incident as a teaching moment to help make everyone aware
of how broad federal child porn laws technically sweep. And, as the linked post reveals, others may indeed be eager to use broad federal criminal prohibitions in order to turn this ugly matter into a federal case.

Ballon Boy parents cut plea deals providing for probation sentence

As detailed in this new report from CBS News, "Richard and Mayumi Heene will plead guilty Friday to charges stemming
from last month's Balloon Boy hoax, the couple's lawyer said." Here are more of the specifics:

Mayumi Heene will plead guilty to falsely reporting to authorities, a misdemeanor. Richard Heene's charge — attempting to influence a public official — is a felony. The deal stipulates a probation sentence for both charges.
The deal avoids more serious felony charges against Mayumi Heene, such as perjury, that could result in her deportation to Japan.

"Upon reviewing the evidence, arguably, Mayumi could have possibly ended up being deported and Richard could have proceeded to trial and had a good chance at an acquittal," lawyer David Lane said. "This, however, would have put the family at grave risk of seeing a loving, caring, compassionate wife and mother ripped from the family and deported. That was not an acceptable risk, thus these pleas."

CBS News legal analyst Andrew Cohen said the deal "makes sense for both sides, especially given the cost of a trial and the risk that the mother involved here would have been deported and separated from her children. So I’m not surprised at all that this ends with a whimper and not a bang."
Cohen notes the judge doesn't have to accept the plea deal and could alter its terms.

Any and all wanna-be sentencing judges among readers are welcomed and encouraged to indicate ad explain whether and why they would accept or reject these plea deals.

Noticing the mandate from Congress to the US Sentencing Commission on mandatory minimums

This new Wall Street Journal article, which is headlined "U.S. Commission to Assess Mandatory Sentences," discusses the recently-enacted legislation instructing the US Sentencing Commission to study mandatory sentencing statutes. Here are excerpts:

Congress has ordered the panel that advises judges on prison terms to conduct a review of mandatory-minimum sentences, a move that could lead to a dramatic rethinking of how the U.S. incarcerates its criminals.

The review is a little-noticed element of the National Defense Authorization Act signed into law last month by President Barack Obama. The defense-spending bill calls on the commission to perform several tasks, including an examination of the impact of mandatory-minimum sentencing laws and alternatives to the practice....

The U.S. Sentencing Commission, which advises judges on all other sentences, has now been charged with issuing recommendations on mandatory minimums. Any final change in sentencing law would have to come from Congress. "It's going to be a massive undertaking," said the new chairman of the Sentencing Commission, William Sessions III.

Mr. Sessions, who is also the chief federal judge in Vermont, said the review would include everything from determining the effects of minimums on the size of the prison population, to spending and the social impact of the policies. "In my view," he said, "it's a very open-ended request."

The inmate population in federal prisons has risen from 24,000 in 1980 to 209,000 as of Nov. 5. Over the same period, the federal Bureau of Prisons staff has grown from 10,000 to about 36,000 employees.

The commission has pushed for changes in mandatory minimums, such as ending the disparity in sentencing for crimes involving crack-cocaine and powder cocaine. Several proposals are pending in Congress to address the crack-cocaine issue. But the commission has not done a full-scale examination of federal sentencing laws since 1991. At the time, there were only 60 mandatory-minimum laws on the books. Now there are about 170.

According to a limited review released by the commission in July, most mandatory-minimum cases in 2008 concerned drugs or weapons crimes. The review found that 21,023 offenders were convicted of crimes that could have triggered the mandatory-minimum sentence. Many got more lenient sentences for a variety of reasons, including cooperation with authorities.

The commission will examine the effects of mandatory minimums on plea agreements. Critics of the system say the threat of such sentences is used to coerce plea bargains. Members of the commission have been traveling the country to meet with judges, prosecutors and defense attorneys. Many have pressed the commission to provide alternatives to imprisonment for nonviolent, low-level drug defendants.

Given that there has been no real movement on even crack-powder mandatory reform over the last three years while Democrats have been in control of both houses of Congress, I am not especially optimistic that this newly-ordered USSC review will lead to "a dramatic rethinking of how the U.S. incarcerates its criminals." Still, it is encouraging to hear the new head of the USSC talking about this ordered review being done in a grand manner.

November 11, 2009

AMA changes its position to be more open to medical marijuana

As detailed in this Los Angeles Times article, which is headlined "Medical marijuana gets a boost from major doctors group," on Tuesday the American Medical Association"urged the federal government to reconsider its classification of marijuana as a dangerous drug with no accepted medical use, a significant shift that puts the prestigious group behind calls for more research." Here are more details:

The nation's largest physicians organization, with about 250,000 member doctors, the AMA has maintained since 1997 that marijuana should remain a Schedule I controlled substance, the most restrictive category, which also includes heroin and LSD. In changing its policy, the group said its goal was to clear the way to conduct clinical research, develop cannabis-based medicines and devise alternative ways to deliver the drug.

"Despite more than 30 years of clinical research, only a small number of randomized, controlled trials have been conducted on smoked cannabis," said Dr. Edward Langston, an AMA board member, noting that the limited number of studies was "insufficient to satisfy the current standards for a prescription drug product."

The decision by the organization's delegates at a meeting in Houston marks another step in the evolving view of marijuana, which an AMA report notes was once linked by the federal government to homicidal mania. Since California voters approved the use of medical marijuana in 1996, marijuana has moved steadily into the cultural mainstream spurred by the growing awareness that it can have beneficial effects for some chronically ill people.

Texas jury sentences FLDS member to 10 years in prison for sexual assault

This local article, headlined "Jury gives Jessop 10 years for sexual assault," reports on the sentencing outcome in a high-profile sexual offense prosecuion. Here are the details:

Jurors took about six hours before handing down the sentence of 10 years in prison and an $8,000 fine. Jessop, who faced a maximum sentence of 20 years and a $10,000 fine, will have to serve at least five years before becoming eligible for parole.

[Raymond Merril] Jessop’s conviction of sexually assaulting a 16-year-old girl in November 2004 at the Yearning for Zion Ranch and the punishment determined by a seven-man, five-woman jury mark a victory for prosecutors in the first of what may be many trials springing from the April 2008 raid on the ranch.

Besides Jessop, 11 other members of the Fundamentalist Church of Jesus Christ of Latter Day Saints face charges ranging from aggravated sexual assault to failure to report child abuse. Another trial is set to start in about three weeks. Asked if he thinks the conviction sent a message to the FLDS church about underage marriage, Nichols said, “We try one case at a time.”

"In California, Some Want To Be On Death Row; Life Is Better There"

The title of this post is the headline of this new NPR entry, which is itself a follow-up to this important new Los Angeles Times article discussing life on California's death row. The full headline for the LATimes piece captures the major themes of today's must-read article: "Death penalty is considered a boon by some California inmates:
Given the state moratorium on executions and an appeals process that can last for decades, inmates can expect to live a long time, and with privileges other prisoners lack." Here are excerpts from the article:

White supremacist gang hit man Billy Joe Johnson got what he asked for from the Orange County jury that convicted him of first-degree murder last month: a death sentence.
It wasn't remorse for his crimes or a desire for atonement that drove him to ask for execution; it was the expectation that conditions on death row would be more comfortable than in other maximum-security prisons and that any date with the executioner would be decades away if it came at all....

Though death row inmates at San Quentin State Prison are far from coddled, they live in single cells that are slightly larger than the two-bunk, maximum-security confines elsewhere, they have better access to telephones and they have "contact visits" in plexiglass booths by themselves rather than in communal halls as in other institutions. They have about the only private accommodations in the state's 33-prison network, which is crammed with 160,000-plus convicts.

Death row prisoners are served breakfast and dinner in their cells, can usually mingle with others in the outdoor exercise yards while eating their sack lunches, and have exclusive control over the television, CD player or other diversions in their cells.
"Death row inmates probably have the most liberal telephone privileges of anyone in state custody," said Terry Thornton, spokeswoman for the California Department of Corrections and Rehabilitation, explaining that they need ready access to their attorneys and can often make calls from their cells over a phone that can be rolled along the cellblock.

The condemned wear the same jeans and chambray-shirt prison garb, eat the same food as prepared in other prisons and enjoy the same access to mail-order and canteen goods paid for by their families, as long as they maintain good behavior, Thornton said.

Those on death row are also allowed more personal property inside their cells, to accommodate their voluminous legal documents without infringing on the 6 cubic feet of snacks and entertainment devices allowed each prisoner, said Lt. Sam Robinson, spokesman for San Quentin.
"It's not that he thinks conditions will be better; they are better," Johnson's attorney, Michael Molfetta, said of his client's request for death row. Johnson, 46, figures that he will be close to 70 by the time his appeals are exhausted, Molfetta said, "and he says he doesn't care to live beyond that."

Students who take my sentencing classes have long heard me say that I would rather be sentenced to death than to life without parole were I to be convicted of a death-eligible crime. I often make this point when talking about wrongful convictions when suggesting that a wrongfully convicted person sentenced to death likely is likely better able to get media and the public interested in his case than a wrongfully convicted person sentenced to LWOP. (The on-going debate in Texas as to whether Cameron Todd Willingham was wrongfully convicted seems to confirm this point.) But this LA Times piece rightly spotlights why even the guilty might prefer a death sentence to an LWOP sentence.

And there are other benefits to death row for the guilty that are not discussed in this piece. For example, many persons on death row are uniquely able to garner pen pals and other abolitionist supporters from European countries and also are uniquely able to garner press attention (as this LA Times article itself shows). Put another way, a murderer condemned to death is always going to be more of a celebrity and will have a higher Q-rating than a murderer given an LWOP sentence.

Of course, some guilty murderer still surely will prefer a lower-profile LWOP fate than the higher-profile experience that comes with a death sentence. Nevertheless, the real-world punishment dynamics discussed here are among the reasons I view LWOP sentences as generally more problematic (and, in turn, generally more "cruel and unusual" for purposes of the Eighth Amendment) than death sentences.

Can Carrie Prejean now use her "child porn" sex tape to her advantage?

In this post yesterday I discussed some of the federal child pornography laws implicated by the acts of Former Miss California USA Carrie Prejean in making and distributing a "sex tape" at the tender age of 17. Following up these points is this on-line commentary, titled "The Carrie Prejean sex tape is child pornography," which concludes with this intriguing bit of legal analysis and advice for Prejean:

You've got to be 18 to exercise your constitutionally protected rights to free speech by stripping off and having sex of any kind on camera. If you're a day below that age then it isn't free speech, it's child pornography. And those who sell it, those who distribute it and even, in certain places, those who watch it inadvertently can go to jail.

All of which leaves open an intriguing option for Carrie Prejean herself if she wishes to pursue it. If it really is true that the pageant's lawyers played the tape in [a] meeting, rather than just revealing its existence, then they themselves are guilty of possession of (and quite possibly production of, given the way the law works about how computers reproduce images as they play them) child pornography. Not that this would earn her any money, but seeing them go down for years as a result would be some sort of revenge, wouldn't it?

Of course, regular readers of this blog should now know that this commentary does not fully capture what Prejean might now hope to achieve through existing federal child porn laws. As detailed in prior posts (some of which are linked below), a number of federal courts have ordered large restitution payments from child porn downloaders to the children/victims portrayed in the illegal images that have been unlawfully possessed. So, were Prejean to convince federal officials to seek to prosecute some of the folks who have viewed and distributed her "child porn" sex tape, she might be able to seek significant restitution as the victim of these child porn offenses.

Of course, as I explained in my prior post about the Prejean sex tape, I am not seriously advocating that this matter become fodder for federal prosecutions. Rather, I am simply eager to use this
high-profile incident as a teaching moment to help make everyone aware
of how broad federal child porn laws technically sweep.

November 10, 2009

A helpful reader made sure that I did not miss the decision by the Ninth Circuit to deny en banc review in US v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009) (discussed here), a case decided this past June in which the panel had reversed a within-guidelines sentence as substantively unreasonable. What makes this latest development especially blog-worthy is the dissent from the denial of en banc review, which is authored by Judge O'Scannlain and joined by six other Ninth Circuit judges. Here is how this dissent gets started:

This is the first published opinion in this circuit reversing a within-Guidelines sentence as substantively unreasonable. The panel reaches this unprecedented result by casting aside Supreme Court and Ninth Circuit precedent in three ways: first, by failing to apply the appropriate standard of review; second, by recognizing a brand-new category of sentencing factors whose consideration by the district court warrants virtually no deference; and finally, by assuming a policymaking role properly reserved to the district court. I must respectfully dissent from our failure to rehear this case en banc.

The closing paragraph of the dissent also seems worth quoting:

This is not just another sentencing case. Employing what amounts to a de novo standard of review, the panel becomes the first in our circuit to publish an opinion reversing a within-Guidelines sentence as substantively unreasonable. In the process, the panel recognizes a brand-new category of sentencing considerations purportedly undeserving of deference, and usurps the policymaking role of the district court as well as the Sentencing Commission. For these reasons, I respectfully dissent from the denial of rehearing en banc.

I doubt that the Supreme Court would take up this case even if the Solicitor General now considers an appeal to SCOTUS. But this dissent sure suggests that at least a few Ninth Circuit judges are eager to have this case added to the Justices' future dance card.

Muhammad's trial, verdict, and sentence have been reviewed by state and federal courts, including the Supreme Court of Virginia, United States District Court for the Eastern District of Virginia, the United States Court of Appeals for the Fourth Circuit, and the United States Supreme Court. Having carefully reviewed the petition for clemency and judicial opinions regarding this case, I find no compelling reason to set aside the sentence that was recommended by the jury and then imposed and affirmed by the courts. Accordingly, I decline to intervene.

Shouldn't the Sullivan case be relatively easy for a true Eighth Amendment textualist?

I have long been a fan of textualist approaches to the Constitution because, at the very least, textualism provides a useful starting point for constitutional debates. And, in some prior posts (see here and here and here), I have suggested that a textualist approach to the Eighth Amendment might make some seemingly hard cases not quite so hard. In my mind, the Sullivan case argued yesterday in the Supreme Court is one of those cases that seems like it should be relatively easy for a true Eighth Amendment textualist.

Here is the full text of the Eighth Amendment: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." In Sullivan, the Court is considering the constitutionality of a prison sentence of life without the possibility of parole for a 13-year-old who committed a rape. For a textualist, the question would seem to be whether Joe Sullivan's punishment under these circumstances is "cruel and unusual."

Part two of the textual analysis seems easy: Joe Sullivan's sentence is surely "unusual." Sullivan is one of only two 13-year-olds to have received an LWOP sentences for a non-homicide offense in perhaps all of American history. Because the constitutional text references "unusual" (as opposed to "unique") punishments, a true Eighth Amendment textualist would likely have to conclude that Sullivan's sentence satisfies the second prong of the Constitution's punishment prohibition.

The claim the Joe Sullivan's sentence is also "cruel" could generate more debate, though this term also seems a relatively easy call within a nation conceived in liberty that generally considers children less responsible (and worthy of more protection) than adults. Specifically, in light of American traditions and commitments, I have a hard time envisioning a sentence more "cruel" than one which confines a juvenile to spend his entire life in prison with no hope or chance for freedom based on an act committed at age 13 which did not take another human life.

Though there was precious little focused textualist discussion in the juve LWOP cases argued yesterday, I did get the sense from the cold transcript that Justice Breyer and perhaps also Justice Sotomayor were drawn to these textualist concepts. It would be somewhat ironic if these Justices (and not an avowed textualist like Justice Scalia) end up being the only ones who take the text of the Eighth Amendment seriously in Graham and Sullivan.

A few related posts on the Graham and Sullivan cases and Eighth Amendment jurisprudence: